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Partial-Birth abortion jurisprudence

By Robert S. Sargent, Jr.
web posted September 20, 2004

A couple of weeks ago on September 8, U.S. District Judge (8th Circuit) Richard Kopf became the third Federal Judge to strike down the Partial Birth Abortion Ban Act of 2003 (the "Act"), declaring it unconstitutional because, "the overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances. In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women." In Sec. 2, Paragraph (2) of the Act, it says, "(partial birth abortion) is …unnecessary to preserve the health of the mother," a finding Judge Kopf found "unreasonable."

The Act was passed after several states had passed similar statutes, but were found unconstitutional. In 1999, two cases in the 8th Circuit struck down partial-birth laws in Iowa and Nebraska. The Nebraska case, Carhart v. Stenberg, was appealed to the U.S. Supreme Court.

This case was decided on June 28, 2000, and the majority opinion, written by Justice Stephen Breyer, found the Nebraska statute violated the Constitution. He wrote there were three principles that determined the issue: "First, before 'viability…the woman has a right to choose to terminate her pregnancy.' Second, 'a law designed to further the State's interest in fetal life which imposes an undue burden on the women's decision before fetal viability' is unconstitutional. Third, the 'State…may regulate…abortion except where it is necessary …for the preservation of the life or health of the mother.'" (Internal quotes in the first and second principles are from Planned Parenthood v. Casey. The internal quote in the third principle is from Roe v. Wade.) The Nebraska statute violated all three principles. The question is are these rulings good law?

Anybody who wants to read good legal writing should read Justice Scalia's scathing dissent in Carhart v. Stenberg. Allow me to quote extensively. (In Planned Parenthood v. Casey a new Constitutional principle was found: "undue burden." Scalia refers to this often in the dissent.)

"…what I consider to be an 'undue burden' is different from what the majority considers to be an 'undue burden' – a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today's majority value the former less, or the latter more (or both), than the four of us in dissent. Case closed. There is not cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised – a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question…whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is 'undue' – i.e. goes too far…The Court should return this matter to the people – where the Constitution, by its silence on the subject, left it – and let them decide State by State, whether this practice should be allowed."

The majority opinion in Stenberg is obviously bad law. First of all, the Justices ignored the principle of a neutral application of the law. Using a test like "undue burden" means that each Justice must decide if, in his opinion, there is actually an undue burden, that is, in the words of Breyer, "(Has) a substantial obstacle (been put) in the path of a woman seeking an abortion of a nonviable fetus."? As Scalia points out, this isn't law, this is policy making. Second, the Ninth Amendment says, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. What could be clearer? Rights are retained by the people not the Federal government or some interpretation by "nine (unelected) lawyers."

Which brings us to the question: is the Federal government's Partial Birth Abortion Ban Act of 2003 Constitutional? After the three federal judges struck down the Act, Rep. Steve King who serves in Iowa, a state covered by the 8th Circuit, got so mad that he suggested to the House Judiciary Committee Chairman James Sensenbrenner that "On issues like the federal ban on partial-birth abortions, judges who overturn the will of the people and their elected representatives must be held accountable for their decisions," and that they should be brought before the Committee to explain their decisions.

Brought before the committee, here's what Judge Kopf would say, "Stare Decisis pal, Casey and Stenberg are the precedents, and if you don't like the way we rule, go after the big boys." Duh. And if King brought a non-activist judge or Justice before the Committee to tell how it should be done, he would say, "The 10th Amendment pal, which says, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people means the Federal government has no business writing statutes about abortion; the Act is unconstitutional." I'm afraid Representative King has picked the wrong fight.

So, the State laws are constitutional, the Federal law is unconstitutional, and the jurisprudence is awful.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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